Citation Nr: 0804871
Decision Date: 02/11/08 Archive Date: 02/20/08
DOCKET NO. 01-06 848 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for a right knee disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The veteran served in the Tennessee Army National Guard from
October 1976 to October 2001. During this time, he had
various periods of active duty for training (ACDUTRA) and
inactive duty for training (INACDUTRA).
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2000 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Nashville,
Tennessee. A prior February 2000 rating decision was
consolidated into the rating decision on appeal.
The veteran requested a Travel Board hearing in his July 2001
substantive appeal. However, he failed to report for the
hearing scheduled in April 2002. Therefore, the Board
hearing request is considered withdrawn. See 38 C.F.R. §
20.704(d).
In March 2007, the Board remanded the case to the RO, via the
Appeals Management Center (AMC), in Washington, DC, for
further development.
The appeal is again REMANDED to the RO via the AMC in
Washington, DC. VA will notify the appellant if further
action is required.
REMAND
In March 2007, the Board remanded the claim to obtain VA
opinion addressing the issue of "whether it is at least as
likely as not (a 50 percent probability) that the veteran's
current right knee arthritis was incurred during periods of
ACDUTRA and INACDUTRA service from October 1976 to October
2001." In so doing, the Board found that medical opinion
was required by 38 C.F.R. § 3.159(c)(4)(i) as a private
medical opinion of record related the veteran's right knee
arthritis to his 20-year history of physical training with
the Tennessee Army National Guard. This examiner, however,
did not discuss the veteran's known post-service occupation
involving prolonged standing as well as considerable bending,
twisting and lifting.
The VA opinion obtained, dated April 2007, focused entirely
on whether the veteran's current right knee disorder was
related to a claimed injury occurring during a period of
ACDUTRA in 1997.
As explained by the Board in April 2007, the medical opinion
was not necessary on this issue as it had no legal merit. In
addition to incorrectly noting the dates of the claimed
meniscal injury and surgical treatment of the veteran's right
knee, the examiner did not address the question posed in the
Board's remand directives. The Board, therefore, has a legal
obligation to return this examination report as failing to
comply with its remand directives. Stegall v. West, 11 Vet.
App. 268, 271 (1998).
Accordingly, the case is REMANDED for the following action:
1. Return the April 2007 VA examination report to
the examiner for an addendum report. In addition
to accurately citing the pertinent dates of injury
and treatment, the examiner should be directed to
discuss all issues identified in this remand order.
If the examiner is not available, send the
veteran's claims folder to an appropriately
qualified examiner for a written medical opinion.
Based on a comprehensive review of the claims
folder, including the April 2007 VA examination
report, the examiner is asked is provide an opinion
as to whether it is at least as likely as not (a 50
percent probability) that the veteran's current
right knee arthritis was incurred during periods of
ACDUTRA and INACDUTRA service from October 1976 to
October 2001. In reaching a conclusion, the
examiner should review the SMRs showing no
treatment for a right knee condition; private
medical records showing treatment and surgery for a
meniscus tear of the right knee from November 1996
through July 1997; an SPR reflecting that the
veteran was put on physical profile in April 1997;
a private medical opinion dated January 2003
relating his current right knee arthritis to his
physical training during his National Guard
service; and a Premier Medical Group report dated
February 19, 1997, which discussed the veteran's
employment as a printing machine pressman as a
possible intercurrent cause of his right knee
condition.
The term "at least as likely as not" does not
mean within the realm of medical possibility, but
rather the weight of medical evidence both for and
against a conclusion is so evenly divided that it
is as medically sound to find in favor of that
conclusion as it is to find against it.
The examiner should include a complete explanation
with his or her opinion, based on findings on
examination and information obtained from review of
the record. If the examiner is unable to provide
the requested opinion, the examination report
should so state.
2. After completing any additional necessary
development, the RO should readjudicate the right
knee issue on appeal, considering any new evidence
secured since the October 2007 supplemental
statement of the case (SSOC). If the disposition
remains unfavorable, the RO should furnish the
veteran and his representative with another SSOC
and afford the applicable opportunity to respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The appellant has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999). This claim must be afforded
expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2007).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).